UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ____)*
FirstWorld Communications, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Series B Common Stock, par value $0.0001 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
337625-20-6
----------------------------------------------------------------------
(CUSIP Number)
Paul J. Shim, Esq.
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
(212) 225-2000
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
February 10, 2000
----------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. |_|
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. Seess. 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 337625-20-6
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TPG Advisors III, Inc.
2 =====================================================================
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X|
(b) |_|
3
4 SOURCE OF FUNDS*
00 - Contributions of Partners of Affiliates
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY 13,097,166** (See Items 4 and 5.)
EACH REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH
10 SHARED DISPOSITIVE POWER
13,097,166** (See Items 4 and 5.)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,097,166** (See Items 4 and 5.)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
34.9% (See Items 4 and 5.)
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 337625-20-6
** Pursuant to the Stock Purchase Agreement, dated as of February 10, 2000,
among Enron North America Corp., ECT Merchant Investments Corp., TPG Partners
III, L.P., T3 Partners, L.P. and Colony Investors IV, L.P. (together with TPG
Partners III, L.P. and T3 Partners, L.P., the "Buyers"), the Buyers are
acquiring 8,236,083 shares of Series B Common Stock and warrants currently
exercisable for 4,861,083 shares of Series B Common Stock of the issuer.
<PAGE>
SCHEDULE 13D
CUSIP No. 337625-20-6
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
T3 Advisors, Inc.
2 =====================================================================
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X|
(b) |_|
3
4 SOURCE OF FUNDS*
00 - Contributions of Partners of Affiliates
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY 13,097,166** (See Items 4 and 5.)
EACH REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH
10 SHARED DISPOSITIVE POWER
13,097,166** (See Items 4 and 5.)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,097,166** (See Items 4 and 5.)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
34.9% (See Items 4 and 5.)
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
CUSIP No. 337625-20-6
** Pursuant to the Stock Purchase Agreement, dated as of February 10, 2000,
among Enron North America Corp., ECT Merchant Investments Corp. and the Buyers,
the Buyers are acquiring 8,236,083 shares of Series B Common Stock and warrants
currently exercisable for 4,861,083 shares of Series B Common Stock of the
issuer.
<PAGE>
SCHEDULE 13D
CUSIP No. 337625-20-6
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ColonyGP IV, Inc.
2 =====================================================================
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X|
(b) |_|
3
4 SOURCE OF FUNDS*
00 - Contributions of Partners of Affiliates
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY 13,097,166** (See Items 4 and 5.)
EACH REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH
10 SHARED DISPOSITIVE POWER
13,097,166** (See Items 4 and 5.)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,097,166** (See Items 4 and 5.)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
34.9% (See Items 4 and 5.)
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 337625-20-6
** Pursuant to the Stock Purchase Agreement, dated as of February 10, 2000,
among Enron North America Corp., ECT Merchant Investments Corp. and the Buyers,
the Buyers are acquiring 8,236,083 shares of Series B Common Stock and warrants
currently exercisable for 4,861,083 shares of Series B Common Stock of the
issuer.
<PAGE>
Page 8 of 14
Item 1. Security and Issuer.
This statement relates to the Series B Common Stock, par value $0.0001 per
share (the "Series B Common Stock"), of FirstWorld Communications, Inc., a
Delaware corporation (the "Company"), whose principal executive offices are
located at 8390 E. Crescent Parkway, Suite 300, Greenwood Village, CO 80111.
Item 2. Identity and Background.
This statement is filed by TPG Advisors III, Inc. ("TPG Advisors III"), T3
Advisors, Inc. ("T3 Advisors") and ColonyGP IV, Inc. ("ColonyGP IV"). The
address of the principal business and office of each of TPG Advisors and T3
Advisors is 201 Main Street, Suite 2420, Fort Worth, Texas 76102. The address of
the principal business and office of ColonyGP IV is 1999 Avenue of the Stars,
Suite 1200, Los Angeles, CA 90067.
TPG Advisors III is a Delaware corporation, the principal business of which
is to serve as the general partner of TPG GenPar III, L.P., a Delaware limited
partnership ("TPG GenPar III"). The principal business of TPG GenPar III is to
serve as the general partner of each of TPG Partners III, L.P., a Delaware
limited partnership ("TPG Partners III"), TPG Parallel III, L.P., a Delaware
limited partnership ("TPG Parallel III"), TPG Investors III, L.P., a Delaware
limited partnership ("TPG Investors III"), TPG Dutch Parallel III, C.V., a
Netherlands limited partnership ("TPG Dutch III"), FOF Partners III, L.P., a
Delaware limited partnership ("FOF Partners III"), FOF Partners III-B, L.P., a
Delaware limited partnership ("FOF Partners III-B") and other related entities
engaged in making investments in securities of public and private corporations.
T3 Advisors is a Delaware corporation, the principal business of which is
to serve as the general partner of T3 GenPar, L.P., a Delaware limited
partnership ("T3 GenPar"). The principal business of T3 GenPar is to serve as
the general partner of each of T3 Partners, L.P., a Delaware limited partnership
("T3 Partners"), T3 Parallel, L.P., a Delaware limited partnership ("T3
Parallel"), T3 Investors, L.P., a Delaware limited partnership ("T3 Investors"),
T3 Dutch Parallel, C.V., a Netherlands limited partnership ("T3 Dutch") and
other related entities engaged in making investments in securities of public and
private corporations in the telecommunications and technology industries.
ColonyGP IV is a Delaware corporation, the principal business of which is
to serve as the general partner of Colony Capital IV, L.P., a Delaware limited
partnership ("Colony Capital IV"). The principal business of Colony Capital is
to serve as the general partner of Colony Investors IV, L.P., a Delaware limited
partnership ("Colony Investors IV"), which is primarily engaged in making real
estate investments.
The executive officers and directors of each of TPG Advisors III and T3
Advisors are David Bonderman (director and President), James Coulter (director
and Executive Vice President), William Price (director and Executive Vice
President), Richard Schifter (Vice President), James O'Brien (Vice President and
Treasurer), Richard Ekleberry (Vice President and Secretary), Thomas Reinhart
(Vice President), Jeffrey Shaw (Vice President), Jonathan Coslet (Vice
President), Linda Rogenski (Assistant Secretary) and S. Michelle Reese
(Assistant Secretary), each of whom is a natural person. No other persons
control TPG Partners III, TPG Parallel III, TPG Investors III, TPG Dutch III,
FOF Partners III, FOF Partners III-B, TPG GenPar III, TPG Advisors III, T3
Partners, T3 Parallel, T3 Investors, T3 Dutch, T3 GenPar or T3 Advisors.
David Bonderman has his business address at 201 Main Street, Suite 2420,
Fort Worth, Texas 76102. Mr. Bonderman's principal occupation is as a director
and President of TPG Advisors III, T3 Advisors and affiliated entities. Mr.
Bonderman is a citizen of the United States.
James Coulter has his business address at 345 California Street, Suite
3300, San Francisco, California 94104. Mr. Coulter's principal occupation is as
a director and Executive Vice President of TPG Advisors III, T3 Advisors and
affiliated entities. Mr. Coulter is a citizen of the United States.
William Price has his business address at 345 California Street, Suite
3300, San Francisco, California 94104. Mr. Price's principal occupation is as a
director and Executive Vice President of TPG Advisors III, T3 Advisors and
affiliated entities. Mr. Price is a citizen of the United States.
Richard Schifter has his business address at 1133 Connecticut Avenue, N.W.,
Washington, D.C. 20036. Mr. Schifter's principal occupation is as a Vice
President of TPG Advisors III, T3 Advisors and affiliated entities. Mr. Schifter
is a citizen of the United States.
James O'Brien has his business address at 201 Main Street, Suite 2420, Fort
Worth, Texas 76102. Mr. O'Brien's principal occupation is as a Vice President
and Secretary of TPG Advisors III, T3 Advisors and affiliated entities. Mr.
O'Brien is a citizen of the United States.
Richard Ekleberry has his business address at 201 Main Street, Suite 2420,
Fort Worth, Texas 76102. Mr. Ekleberry's principal occupation is as a Vice
President of ColonyGP IV, TPG Advisors III, T3 Advisors and affiliated entities.
Mr. Ekleberry is a citizen of the United States.
Thomas Reinhart has his business address at 201 Main Street, Suite 2420,
Fort Worth, Texas 76102. Mr. Reinhart's principal occupation is as a Vice
President of TPG Advisors III, T3 Advisors and affiliated entities. Mr. Reinhart
is a citizen of the United States.
Jeffrey Shaw has his business address at 201 Main Street, Suite 2420, Fort
Worth, Texas 76102. Mr. Shaw's principal occupation is as a Vice President of
TPG Advisors III, T3 Advisors and affiliated entities. Mr. Shaw is a citizen of
the United States.
Jonathan Coslet has his business address at 201 Main Street, Suite 2420,
Fort Worth, Texas 76102. Mr. Coslet's principal occupation is as a Vice
President of TPG Advisors III, T3 Advisors and affiliated entities. Mr. Coslet
is a citizen of the United States.
Linda Rogenski has her business address at 201 Main Street, Suite 2420,
Fort Worth, Texas 76102. Ms. Rogenski's principal occupation is as an Assistant
Secretary of TPG Advisors III, T3 Advisors and affiliated entities. Ms. Rogenski
is a citizen of the United States.
S. Michelle Reese has her business address at 201 Main Street, Suite 2420,
Fort Worth, Texas 76102. Ms. Reese's principal occupation is as an Assistant
Secretary of TPG Advisors III, T3 Advisors and affiliated entities. Ms. Reese is
a citizen of the United States.
The executive officers and directors of ColonyGP IV are Thomas J. Barrack,
Jr. (director and Chief Executive Officer), Mark Hedstrom (Chief Financial
Officer and Treasurer), John Viola (Vice President) and Richard Ekleberry (Vice
President).
Thomas Barrack has his business address at 1999 Avenue of the Stars, Suite
1200, Los Angeles, CA 90067. Mr. Barrack's principal occupation is as a director
and Chief Executive Officer of ColonyGP IV and affiliated entities. Mr. Barrack
is a citizen of the United States.
Mark Hedstrom has his business address at 1999 Avenue of the Stars, Suite
1200, Los Angeles, CA 90067. Mr. Hedstrom's principal occupation is as Chief
Financial Officer and Treasurer of ColonyGP IV and affiliated entities. Mr.
Hedstrom is a citizen of the United States.
John Viola has his business address at 1999 Avenue of the Stars, Suite
1200, Los Angeles, CA 90067. Mr. Viola's principal occupation is as a Vice
President of ColonyGP IV and affiliated entities. Mr. Viola is a citizen of the
United States.
During the last five years, none of TPG Advisors III, T3 Advisors or
ColonyGP IV, and to the best knowledge of TPG Advisors III, T3 Advisors and
ColonyGP IV, respectively, none of TPG GenPar III, T3 GenPar, Colony Capital IV
or the executive officers or directors of TPG Advisors III, T3 Advisors or
ColonyGP IV has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors). During the last five years, none of TPG
Advisors III, T3 Advisors or ColonyGP IV, and to the best knowledge of TPG
Advisors III, T3 Advisors and ColonyGP IV, respectively, none of TPG GenPar III,
T3 GenPar, Colony Capital IV or such individuals has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
As more fully described under Item 4 below, TPG Partners III, T3 Partners,
Colony Investors IV (together with TPG Partners III and T3 Partners, the
"Buyers"), Enron North America Corp., a Delaware corporation ("ENA"), and ECT
Merchant Investments Corp., a Delaware corporation ("ECT," and together with
ENA, the "Sellers"), have entered into the Enron Purchase Agreement (as defined
below), pursuant to which the Buyers have agreed to purchase the Securities (as
defined below) for aggregate consideration of $129,117,535.50 in cash. In
addition, TPG FirstWorld I LLC (as defined below) and the Company have entered
into the Company Purchase Agreement (as defined below), pursuant to which TPG
FirstWorld I LLC has agreed to purchase the New Shares (as defined below). It is
currently anticipated that the funds required for the purchase of the Securities
and the New Shares by the Buyers and TPG FirstWorld I LLC, respectively, will be
obtained from general funds available to the Buyers and TPG FirstWorld I LLC and
their respective affiliates.
Item 4. Purpose of Transaction.
Enron Purchase Agreement. On February 10, 2000, the Buyers and the Sellers
entered into a Stock Purchase Agreement (the "Enron Purchase Agreement")
providing for, among other things, the purchase by the Sellers from the Buyers
of (i) 5,000,000 shares of the Company's Series A Common Stock, par value
$0.0001 per share (the "Series A Common Stock"), which will convert into
5,000,000 shares of Series B Common Stock upon their sale to Buyers, (ii)
3,236,083 shares of Series B Common Stock, (iii) warrants expiring December 30,
2004 to purchase 5,000,000 shares of Series B Common Stock with an exercise
price of $3.00 per share (the "December Warrants") and (iv) warrants expiring
April 13, 2005 to purchase 236,083 shares of Series B Common Stock with an
exercise price of $3.00 per share. The warrants of the Company described under
items (iii) and (iv) above are referred to herein as the "Warrants." The
Warrants, together with the shares of common stock of the Company described in
items (i) and (ii) above, are referred to herein as the "Securities." The
aggregate purchase price to be paid for the Securities by the Buyers pursuant to
the Enron Purchase Agreement is $129,117,535.50 in cash.
Company Purchase Agreement. In addition, on February 11, 2000, TPG
FirstWorld I LLC, a Delaware limited liability company, and the Company entered
into a Stock Purchase Agreement (the "Company Purchase Agreement"), providing
for, among other things, the purchase by TPG FirstWorld I LLC from the Company
of the number of shares of the Series B Common Stock (the "New Shares") obtained
by dividing $50,000,000 by 93% of the per share price paid by the public for the
Series B Common Stock in the Company's initial public offering of such stock
(the "IPO"). The members of TPG FirstWorld I LLC are the Buyers and all of the
limited partnerships named in Item 2 except TPG GenPar, T3 GenPar and Colony
Capital.
The obligations of the Buyers to purchase the Securities pursuant to the
Enron Purchase Agreement and of TPG FirstWorld I LLC to purchase the New Shares
pursuant to the Company Purchase Agreement are subject to the satisfaction and
waiver of certain conditions, including among other things the receipt of
applicable regulatory approvals and the expiration of the statutory waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act. In addition, the
agreement of TPG FirstWorld I LLC to purchase (and of the Company to sell) any
portion of the New Shares pursuant to the Company Purchase Agreement is subject
to the condition that such purchase, individually, or taken together with all
other persons or entities acting as a group with TPG FirstWorld I LLC within the
meaning of Section 13(d)(3) and Section 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), (collectively, the "Group") would not
cause the Group to become the Beneficial Owner (as such term is defined in the
Company's Indenture dated April 13, 1998 (the "Indenture")) of more than 35% of
Voting Stock (as such term is defined in the Indenture) of the Company.
Warrant Amendment. In connection with the Enron Purchase Agreement, the
Buyers and the Company entered into a Warrant Amendment, dated as of February
10, 2000 (the "Warrant Amendment"), which provides that, upon the closing of the
purchase of the Securities under the Enron Purchase Agreement, the December
Warrants shall be issued in two separate instruments, exercisable for 4,625,000
shares and 375,000 shares of Series B Common Stock, respectively. Pursuant to
the Warrant Amendment, December Warrants exercisable for 375,000 shares of
Series B Common Stock were amended such that they would not be exercisable to
the extent (but only to the extent) that such exercisability would cause the
holder of such Warrants, individually, or taken together with all other all
persons or entities acting as a group with such holder within the meaning of
Section 13(d)(3) and Section 14(d)(2) of the Exchange Act to be or become the
Beneficial Owner (as such term is defined in the Indenture) of more than 35% of
the total Voting Stock (as such term is defined in the Indenture) of the
Company. The Warrant Amendment also provides that, notwithstanding the
foregoing, such December Warrants become fully exercisable upon the earliest to
occur of (i) the 61st day following the closing of the Company's IPO, (ii)
February 15, 2001, (iii) any Change of Control (as such term is defined in the
Indenture) and (iv) any amendment to or restatement of the Company's Bylaws or
Certificate of Incorporation without the consent of Buyers or their transferees
holding a majority of the Warrants (subject to certain exceptions).
Investor Rights Agreement. ENA and the Company (as well as certain other
holders of the Company's securities) are party to an Amended and Restated
Investor Rights Agreement dated as of April 13, 1998 (as subsequently amended,
the "Investor Rights Agreement"), to which the Buyers and TPG FirstWorld I LLC
will become party upon the consummation of the transactions contemplated by each
of the Enron Purchase Agreement and the Company Purchase Agreement,
respectively. The Investor Rights Agreement provides for certain transfer
restrictions, demand, piggyback and Form S-3 registration rights and rights of
first refusal. TPG FirstWorld I LLC will become a party to the Investor Rights
Agreement only with respect to the demand, piggyback and Form S-3 registration
rights provided for therein. In connection with the Enron Purchase Agreement,
the Buyers, the Company, ENA and certain other parties to the Investor Rights
Agreement entered into a letter agreement, dated February 10, 2000 (the
"Investor Rights Letter Agreement"), in order to assign certain rights of ENA
under the Investor Rights Agreement to the Buyers.
General. The provisions of the Enron Purchase Agreement, the Company
Purchase Agreement, the Warrant Amendment, the Investor Rights Agreement and the
Investor Rights Letter Agreement are set forth in full in those documents which
are filed or incorporated by reference as Exhibits 1, 2, 3, 4 and 5 to this
Schedule, and which are incorporated herein in their entirety by this reference
in response to this Item. The foregoing description of the terms and provisions
of these documents is a summary only, and is qualified in its entirety by
reference to such documents.
Subject to the restrictions described above, the Buyers and TPG FirstWorld
I LLC may, from time to time, subject to developments with respect to the
Company and market conditions, consider and determine to effect the purchase or
sale of shares of Series B Common Stock or other securities of the Company.
Except as set forth herein, none of the Buyers, TPG FirstWorld I LLC, TPG
Advisors III, T3 Advisors or ColonyGP IV have any plans or proposals which would
relate to or result in any of the actions described in subparagraphs (a) through
(j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a), (b) As of the date hereof, none of the Buyers, TPG FirstWorld I LLC,
TPG Advisors III, T3 Advisors or ColonyGP IV holds of record any shares of
common stock or other securities of the Company. However, by virtue of the
execution of the Enron Purchase Agreement and the Company Purchase Agreement,
TPG Advisors III, as the general partner of the general partner of TPG Partners
III and of the sole member of TPG FirstWorld I LLC, T3 Advisors III, as the
general partner of the general partner of T3 Partners, and ColonyGP IV, as the
general partner of the general partner of Colony Investors IV, may be deemed to
own beneficially up to 13,097,166 shares of Series B Common Stock, representing
in the aggregate 34.9% of the outstanding shares of common stock of the Company
(based on the number of shares of common stock represented by the Company to be
outstanding as of February 10, 2000).
(c) Except as described herein, no transactions in shares of common stock
of the Company were effected during the past 60 days by TPG Advisors III, T3
Advisors, ColonyGP IV or to the best of their knowledge, any of the individuals
identified in Item 2.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understanding or Relationships with Respect to
Securities of the Issuer.
Except as set forth in this statement, to the best knowledge of TPG
Advisors III, T3 Advisors and ColonyGP IV there are no other contracts,
arrangements, understandings or relationships (legal or otherwise) among the
persons named in Item 2 and between such persons and any person with respect to
any securities of the Company, including but not limited to, transfer or voting
of any of the securities of the Company, joint ventures, loan or options
arrangements, puts or calls, guarantees of profits, division of profits or loss,
or the giving or withholding of proxies, or a pledge or contingency the
occurrence of which would give another person voting power over the securities
of the Company.
Item 7. Material to be Filed as Exhibits
Exhibit 1 Stock Purchase Agreement, dated as of February 10, 2000, by and
between Enron North America Corp., ECT Merchant Investments Corp.,
TPG Partners III, L.P., T3 Partners, L.P. and Colony Investors IV,
L.P.
Exhibit 2 Warrant Amendment, dated as of February 10, 2000, among FirstWorld
Communications, Inc., TPG Partners III, L.P., T3 Partners, L.P.
and Colony Investors IV, L.P.
Exhibit 3 Stock Purchase Agreement, dated as of February 11, 2000, by and
between FirstWorld Communications, Inc. and TPG FirstWorld I LLC.
Exhibit 4 Investor Rights Agreement, dated as of April 13, 1998, incorporated
herein by reference to Exhibit 10.8 to the Company's Registration
Statement on Form S-1 (No. 333-93357) filed with the Securities
and Exchange Commission on February 16, 2000.
Exhibit 5 Investor Rights Letter Agreement, dated February 10, 2000.
Exhibit 6 Joint Filing Agreement, dated February 22, 2000.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement with respect to TPG
Advisors III, Inc. is true, complete and correct.
Dated: February 22, 2000.
TPG ADVISORS III, INC.
By: /s/ Richard A. Ekleberry
------------------------
Name: Richard A. Ekleberry
Title: Vice President
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement with respect to T3
Advisors, Inc. is true, complete and correct.
Dated: February 22, 2000.
T3 ADVISORS, INC.
By: /s/ Richard A. Ekleberry
------------------------
Name: Richard A. Ekleberry
Title: Vice President
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement with respect to
ColonyGP IV, Inc. is true, complete and correct.
Dated: February 22, 2000.
COLONYGP IV, INC.
By: /s/ Richard A. Ekleberry
------------------------
Name: Richard A. Ekleberry
Title: Vice President
Exhibit 1
---------
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made effective as of
February 10, 2000 (the "Effective Date") by and between Enron North America
Corp., a Delaware corporation ("ENA") and ECT Merchant Investments Corp., a
Delaware corporation ("ECT," and together with ENA, the "Sellers") and TPG
Partners III, L.P., T3 Partners, L.P. and Colony Investors IV, L.P., each a
Delaware limited partnership (collectively the "Buyers").
RECITALS
WHEREAS, as of the Closing Date (as defined in Section 3, below) ENA will
own the following securities issued by FirstWorld Communications, Inc., a
Delaware corporation (the "Company"): 4,274,426 shares of Series A Common Stock
(the "Series A Common Shares"); 3,236,083 shares of Series B Common Stock (the
"Series B Common Shares"); and 5,000,000 warrants expiring December 30, 2004
(the "December Warrants") and 3,236,083 warrants expiring April 13, 2005 (the
"April Warrants"), each to purchase shares of Series B Common Shares of the
Company with an exercise price of three dollars ($3.00) per share; and
WHEREAS, ECT owns 725,574 Series A Common Shares; and
WHEREAS, the Company securities owned by Sellers are subject to the terms
of (i) a Securityholders Agreement dated December 30, 1997 among an affiliate of
the Sellers and various entities controlled by Donald Sturm (the "Sturm
Entities"), as amended, (the "Securityholders Agreement"), and (ii) an Amended
and Restated Investor Rights Agreement dated September 28, 1998 among an
affiliate of the Sellers, the Company and the Sturm Entities, as amended, (the
"Investor Rights Agreement");
WHEREAS, Buyers desire to purchase from Sellers, and Sellers desire to sell
to Buyers the following securities issued by the Company (the "FirstWorld
Securities"): (i) the 5,000,000 Series A Common Shares which will convert into
5,000,000 shares of Series B Common Stock upon transfer to Buyers, (ii) the
3,236,083 Series B Common Shares and (iii) the 5,000,000 December Warrants and
236,083 of the April Warrants, all upon the terms and conditions hereinafter set
forth;
WHEREAS, ENA is retaining 3,000,000 of the April Warrants; and
WHEREAS, concurrently herewith the Sellers, Buyers and other persons are
entering into letter agreements assigning certain rights under the Investor
Rights Agreement to Buyers and agreeing to terminate Sellers' rights thereunder;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, representations, warranties, provisions and covenants herein
contained, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE OF THE STOCK
Subject to the terms and conditions of this Agreement, the Sellers agree to
sell those FirstWorld Securities owned by each of them to the Buyers, free and
clear of all liens, claims, restrictions or encumbrances of any kind, except for
those imposed pursuant to any agreements entered into by Buyers, and the Buyers
agree to purchase and accept the FirstWorld Securities from the Sellers.
2. PURCHASE PRICE
The purchase price for the Series A Common Shares and Series B Common
Shares shall be Ten and 75/100 Dollars ($10.75) per share. The purchase price
for the December Warrants and April Warrants shall be Seven and 75/100 Dollars
($7.75) per warrant. The Buyers shall pay the Sellers an aggregate of One
Hundred Twenty-nine Million One Hundred Seventeen Thousand Five Hundred
Thirty-five and 50/100 Dollars ($129,117,535.50) (the "Purchase Price") by wire
transfer to Sellers. The individual FirstWorld Securities to be transferred by
each Seller and the Buyer to which they are to be transferred shall be
identified by the parties at least two (2) business days prior to Closing.
Buyers shall also pay any applicable transfer tax.
3. CLOSING
The closing (the "Closing") for the purchase and sale of the FirstWorld
Securities shall take place on a date (the "Closing Date") within five (5)
business days after the satisfaction or waiver of all conditions precedent in
Articles 6 and 7 at the offices of Andrews & Kurth L.L.P., 600 Travis, Suite
4200, Houston, Texas 77002.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers represent and warrant that all of the following representations
and warranties in this Section 4 are true as of the date hereof, and that such
representations and warranties shall survive until the first anniversary of the
Closing Date ("the Expiration Date").
4.1 Authorization. Each Seller is a corporation duly incorporated and
organized, validly existing and in good standing under the laws of the State of
Delaware. Each Seller has all requisite power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
Each Seller has duly and validly executed and delivered this Agreement and any
documents required to be delivered pursuant hereto to which it is a party
(collectively with the Agreement, the "Sellers' Sale Agreements"). Assuming the
due authorization, execution and delivery of the Sellers' Sale Agreements by the
parties hereto and thereto other than the Sellers, the Sellers' Sale Agreements
constitute the legal, valid and binding obligations of the Sellers, enforceable
against each of the Sellers in accordance with their respective terms, except as
such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and general equitable principles.
4.2 Capitalization. The information included in Exhibit A hereto under the
heading "Capitalization" sets forth a complete and accurate statement of (i) all
of the authorized, issued and outstanding capital stock of the Company and (ii)
all outstanding warrants, options and other rights to acquire any shares of the
capital stock of the Company, (except for subsequent issuances pursuant to
reservations, agreements or employee benefit plans referred to in the
Registration Statement No. 333-0521976 filed by FirstWorld for its anticipated
offering of Series B Common Stock and except for the sale of stock by the
Company to Colorado Spectra 4, L.P., Lucent Technologies, Inc., SAIC Venture
Capital Corporation, Microsoft Corporation and the Buyers, or affiliates of the
foregoing). Sellers may revise such Exhibit at any time prior to Closing to
conform it to changes made in the Registration Statement filed by FirstWorld.
4.3 FirstWorld Securities. Except for (i) the Securityholders Agreement and
(ii) the Investor Rights Agreement, all of the FirstWorld Securities are free
and clear of all liens, claims, restrictions or encumbrances of any kind and the
shares of capital stock have been duly authorized and validly issued, are fully
paid and non-assessable and as of the closing date and prior to the transactions
contemplated herein shall be owned of record by the Sellers, as set forth in the
recitals.
4.4 No Violations; Filings. (a) The execution and delivery of this
Agreement by each Seller does not violate, conflict with or result in a breach
of any provision of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under: (1) either Seller's
charter documents or (ii) any statute, law, ordinance, rule, regulation,
judgment, decree, order, injunction, writ, permit or license of any court or
governmental authority applicable to either Seller or any of either Seller's
properties or assets. The consummation by each of the Sellers of the
transactions contemplated herein shall not result in any material violation,
conflict or breach of or default under the items described in clauses (i) and
(ii) of the preceding sentence.
(b) Other than appropriate filings and approvals under the Exchange Act of
1934 and the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the
"Hart-Scott Act"), no declaration, filing or registration with, or notice to, or
authorization, consent or approval of, any governmental or regulatory body or
authority is necessary for the execution and delivery of this Agreement by the
Sellers or the consummation by the Sellers of the transactions contemplated
herein.
5. REPRESENTATIONS AND WARRANTIES OF THE BUYERS
The Buyers represent and warrant that all of the following representations
and warranties in this Section 5 are true as of the date hereof, and that such
representations and warranties shall survive until the Expiration Date.
5.1 Authorization. Each Buyer is a partnership duly formed, validly
existing and in good standing under the laws of the State of Delaware. The
general partner of each Buyer is a limited partnership duly formed, validly
existing and in good standing under the laws of Delaware. The general partner of
each general partner is a corporation duly formed, validly existing and in good
standing under the laws of the State of Delaware. Each Buyer has all requisite
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. Each Buyer has duly and validly executed and
delivered this Agreement and any documents required to be delivered pursuant
hereto to which it is a party (collectively with the Agreement, the "Buyers'
Sale Agreements"). Assuming the due authorization, execution and delivery of the
Buyers' Sale Agreements by the parties hereto and thereto other than the Buyers,
the Buyers' Sale Agreements constitute the legal, valid and binding obligations
of the Buyers, enforceable against the Buyers in accordance with their
respective terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and general equitable principles. Notwithstanding
the foregoing, the Buyers do not make any representation regarding the
enforceability of the provisions of Section 5.5 below.
5.2 No Violations. (a) The execution and delivery of this Agreement by each
Buyer does not violate, conflict with or result in a breach of any provision of,
or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under (i) the Buyer's charter documents or
(ii) any statute, law, ordinance, rule, regulation, judgment, decree, order,
injunction, writ, permit or license of any court or governmental authority
applicable to the Buyer or any of its properties or assets. The consummation by
each Buyer of the transactions contemplated herein shall not result in any
material violation, conflict or breach of or default under the items described
in clauses (i) and (ii) of the preceding sentence.
(b) Other than appropriate filings and approvals under the Exchange Act of
1934 and the Hart-Scott Act, no declaration, filing or registration with, or
notice to, or authorization, consent or approval of, any governmental or
regulatory body or authority is necessary for the execution and delivery of this
Agreement by the Buyers or the consummation by the Buyers of the transactions
contemplated herein.
5.3 Investment Representations. (a) Each Buyer is an "accredited investor"
as defined in Regulation D, as promulgated by the United States Securities and
Exchange Commission.
(b) Each Buyer acknowledges that the FirstWorld Securities have not been
registered under the Securities Act and may not be offered or sold except
pursuant to an exemption from, or a transaction not subject to, the registration
requirements of the Securities Act or pursuant to an effective registration
statement under the Securities Act. Each Buyer acknowledges that any certificate
representing any of the FirstWorld Securities issued to it will bear a
restrictive legend substantially in the same form as the current certificates.
Each Buyer represents and warrants that the offer to sell the FirstWorld
Securities was communicated personally to the Buyer and at no time was the Buyer
presented with or solicited by or through any public promotional meeting,
television advertisement or any other form of general or public advertising or
solicitation.
(c) Each Buyer further acknowledges that the FirstWorld Securities are
currently subject to the rights and restrictions contained in the
Securityholders Agreement and the Investor Rights Agreement. Concurrently
herewith the parties to the Securityholders Agreement have entered into an
agreement providing for the termination of such agreement, and the parties to
the Investor Rights Agreement have entered into an agreement assigning certain
rights from Sellers to Buyers and providing for the termination of Sellers'
rights and obligations under the Investor Rights Agreement upon the later of the
Closing or the consummation of a public offering of the Series B Common Stock.
(d) Each Buyer is acquiring the FirstWorld Securities for investment and
not with a view to the distribution thereof or dividing all or any part of its
interest therein with any other person.
(e) Each Buyer can bear the economic risks of the transaction which is
contemplated by this Agreement; none of the Buyers has relied upon the Sellers
to determine the suitability of the Buyers to acquire the FirstWorld Securities;
each Buyer has such knowledge and experience in financial and business matters
that the Buyer has not relied upon any opinion or expression of the Sellers or
their agents about the value of the FirstWorld Securities and each Buyer is
capable of evaluating for itself the risks, merits and suitability of the
acquisition of the FirstWorld Securities.
(f) Each Buyer acknowledges that each share of Series A Common Stock
transferred to the Buyer by the Sellers will automatically convert into one
share of Series B Common Stock upon the transfer.
(g) Each Buyer acknowledges that: (i) the Company has filed a registration
statement to sell shares of its Series B Common Stock in a public offering
pursuant to the Securities Act; (ii) there can be no assurances that such
offering will be consummated or, if consummated, will be consummated upon any
terms currently anticipated by the parties or the Company and (iii) none of the
Buyers' obligations hereunder are conditioned upon the consummation of the
offering or its consummation upon any certain terms or any other sale of
securities by the Company contemplated as of the Effective Date or thereafter.
5.4 No Other Representations or Warranties. Each Buyer acknowledges and
agrees that other than the representations and warranties of the Sellers
specifically contained in this Agreement, there are no representations or
warranties of either Seller, either express or implied, with respect to the
transactions contemplated by this Agreement, the Company or its assets,
liabilities or business.
6. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLERS
All obligations of Sellers which are to be discharged under this Agreement
at the Closing are subject to the fulfillment at, or prior to, the Closing, of
each of the following conditions (unless expressly waived in writing by each
Seller at any time at or prior to the Closing):
6.1 Representations and Warranties True. All of the representations and
warranties made by the Buyers in this Agreement shall be true as of the Closing
Date. Each Buyer shall have performed and complied with all covenants and
conditions required by this Agreement to be performed or complied with by the
Buyer prior to or at the Closing.
6.2 No Obstructive Proceeding. Any waiting periods under the Hart-Scott
Act, if applicable, shall have expired or been terminated. No action or
proceedings shall have been instituted against, and no order, decree or judgment
of any court, agency, commission or governmental authority shall be subsisting
against either of the Sellers, Buyers, or the officers or directors of any of
the foregoing which seeks to, or would, render it unlawful as of the Closing to
effect the transactions contemplated hereby in accordance with the terms hereof.
Also, no substantive legal objection to the transactions contemplated by this
Agreement shall have been received from or threatened by any governmental
department or agency.
7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYERS
All obligations of the Buyers which are to be discharged under this
Agreement at the Closing are subject to the fulfillment at or prior to the
Closing of each of the following conditions (unless expressly waived in writing
by each Buyer at any time at or prior to the Closing):
7.1 Representations and Warranties True. All of the representations and
warranties of Sellers contained in this Agreement shall be true as of the
Closing Date. Sellers shall have performed or complied with all covenants and
conditions required by this Agreement to be performed or complied with by them
prior to or at the Closing.
7.2 No Obstructive Proceeding. Any waiting periods under the Hart-Scott
Act, if applicable, shall have expired or been terminated. No action or
proceedings shall have been instituted against, and no order, decree or judgment
of any court, agency, commission or governmental authority shall be subsisting
against either Seller, the Buyers or the officers or directors of any of the
foregoing, which seeks to, or would, render it unlawful as of the Closing to
effect the transactions contemplated hereby in accordance with the terms hereof.
Also, no substantive legal objection to the transactions contemplated by this
Agreement shall have been received from or threatened by any governmental
department or agency.
8. DELIVERIES BY BUYER
At Closing, the Buyers shall deliver the following:
8.1 Payment of Purchase Price. A wire transfer to the account designated in
writing by the Sellers in the amount of the Purchase Price. Sellers shall
designate such accounts at least two (2) business days prior to the Closing
Date.
8.2 Secretary's Certificates. A certificate or certificates, dated as of
the date hereof and signed on behalf of the Partnership by the secretary of the
general partner of the general partner of each Buyer, certifying the truth and
correctness of attached copies of the Buyer's constituent documents (including
amendments thereto), and resolutions or other appropriate evidence of
authorization of this Agreement and the consummation of the transactions
contemplated herein.
8.3 Officers' Certificate. A certificate dated as of the date hereof and
signed by an authorized officer of the general partner of the general partner of
each Buyer, certifying as to the satisfaction of the conditions to Closing set
forth in Section 6, hereof.
9. DELIVERIES BY SELLERS
At Closing, Sellers shall deliver the following:
9.1 Stock Certificates. Certificates for the Series A Common Shares and
Series B Common Shares, free and clear of all liens, claims, charges,
restrictions, equities or encumbrances of any kind, which certificates shall be
duly endorsed to the Buyers or accompanied by duly executed stock powers in form
satisfactory to the Buyers sufficient to convey to the designated Buyers good
title to such Shares.
9.2 Warrants. Warrant certificates or other documentation evidencing the
Warrants, free and clear of all liens, claims, charges, restrictions, equities
or encumbrances of any kind (other than those set forth in the Investment
Agreements) which shall be accompanied by duly executed, valid assignments in
form reasonably satisfactory to the Buyers sufficient to convey to the
designated Buyers good title to such warrants.
9.3 Secretary's Certificate. Certificates, dated as of the date hereof and
signed by the secretary of each of the Sellers, certifying the truth and
correctness of attached copies of the Seller's Certificate of Incorporation
(including amendments thereto), Bylaws (including amendments thereto), and
resolutions of their respective boards of directors approving this Agreement and
the consummation of the transactions contemplated herein.
9.4 Officers' Certificate. Certificate, dated as of the date hereof and
signed by the Chief Executive or Chief Financial Officer of each of the Sellers,
certifying as to the satisfaction of the conditions to Closing set forth in
Section 7, hereof.
10. INDEMNIFICATION
The Sellers and Buyer each make the following covenants that are applicable
to them, respectively:
10.1 Indemnification by the Sellers. Each Seller covenants and agrees that
it shall indemnify, defend, protect and hold harmless the Buyers and their
respective affiliates, their respective present and former directors, officers,
stockholders, employees and agents and their respective heirs, executors,
personal representatives, administrators, successors and assigns (the "Buyer
Indemnified Persons") at all times from and after the date of this Agreement
until the Expiration Date from and against all claims, damages (including
consequential, punitive or exemplary), actions, suits, proceedings, demands,
assessments, adjustments, costs and expenses (including specifically, but
without limitation, reasonable attorneys' fees and consulting fees) incurred by
or asserted against any Buyer Indemnified Persons as a result of or arising from
directly or indirectly: (a) any breach of the representations and warranties of
the Sellers set forth herein; or (b) any breach of any agreement on the part of
the Sellers under this Agreement.
10.2 Indemnification by the Buyers. Each Buyer covenants and agrees that it
shall indemnify, defend, protect and hold harmless the Sellers and their
respective affiliates, their respective present and former directors, officers,
stockholders, employees and agents and their respective heirs, executors,
personal representatives, administrators, successors and assigns (the "Seller
Indemnified Persons") at all times from and after the date of this Agreement
until the Expiration Date from and against all claims, damages (including
consequential, punitive or exemplary), actions, suits, proceedings, demands,
assessments, adjustments, costs and expenses (including specifically, but
without limitation, reasonable attorneys' fees and consulting fees) incurred by
the Seller Indemnified Persons as a result of or arising from directly or
indirectly (a) any breach of the representations and warranties of the Buyers
set forth herein, or (b) any breach of any agreement on the part of the Buyers
under this Agreement.
10.3 Third Person Claims. Promptly after any party hereto (hereinafter the
"Indemnified Party") has received notice of or has knowledge of any claim by a
person not a party to this Agreement ("Third Person"), or the commencement of
any action or proceeding by a Third Person, the Indemnified Party shall, as a
condition precedent to a claim with respect thereto being made against any party
obligated to provide indemnification pursuant to Section 8.1 or 8.2 hereof
(hereinafter the "Indemnifying Party"), give the Indemnifying Party written
notice of such claim or the commencement of such action or proceeding. Such
notice shall state the nature and the basis of such claim and a reasonable
estimate of the amount thereof. The Indemnifying Party shall have the right to
defend and settle, at its own expense and by its own counsel, any such matter so
long as the Indemnifying Party pursues the same in good faith and diligently;
provided that the Indemnifying Party shall not settle any such proceeding
without the written consent of the Indemnified Party. If the Indemnifying Party
undertakes to defend or settle, it shall promptly notify the Indemnified Party
of its intention to do so, and the Indemnified Party shall cooperate with the
Indemnifying Party and its counsel in the defense thereof and in any settlement
thereof. Such cooperation shall include, but shall not be limited to, furnishing
the Indemnifying Party with any books, records or information reasonably
requested by the Indemnifying Party that are in the Indemnified Party's
possession or control. All Indemnified Parties shall use the same counsel, which
shall be the counsel selected by Indemnifying Party, provided that if counsel to
the Indemnifying Party shall have a conflict of interest that prevents counsel
for the Indemnifying Party from representing Indemnified Party, Indemnified
Party shall have the right to participate in such matter through counsel of its
own choosing and the Indemnifying Party shall reimburse the Indemnified Party
for the reasonable expenses of its counsel.
After the Indemnifying Party has notified the Indemnified Party of its
intention to undertake to defend or settle any such asserted liability, and for
so long as the Indemnifying Party diligently pursues such defense, the
Indemnifying Party shall not be liable for any additional legal expenses
incurred by the Indemnified Party in connection with any defense or settlement
of such asserted liability, except (i) as set forth in the preceding sentence
and (ii) to the extent such participation is requested by the Indemnifying
Party, in which event the Indemnified Party shall be reimbursed by the
Indemnifying Party for reasonable additional legal expenses and out-of-pocket
expenses.
If the Indemnifying Party desires to accept a final and complete settlement
of any such Third Person claim involving only the payment of money and the
Indemnified Party refuses to consent to such settlement, then the Indemnifying
Party's liability under this Section with respect to such Third Person claim
shall be limited to the amount so offered in settlement by said Third Person.
Upon agreement as to such settlement between said Third Person and the
Indemnifying Party, the Indemnifying Party shall, in exchange for a complete
release from the Indemnified Party, promptly pay to the Indemnified Party the
amount agreed to in such settlement and the Indemnified Party shall, from that
moment on, bear full responsibility for any additional costs of defense which it
subsequently incurs with respect to such claim and all additional costs of
settlement or judgment. If the Indemnifying Party does not undertake to defend
such matter to which the Indemnified Party is entitled to indemnification
hereunder, or fails diligently to pursue such defense, the Indemnified Party may
undertake such defense through counsel of its choice, at the cost and expense of
the Indemnifying Party, and the Indemnified Party may settle such matter, and
the Indemnifying Party shall reimburse the Indemnified Party for the settlement
and any other liabilities or expenses incurred by the Indemnified Party in
connection therewith, provided, however, that under no circumstances shall the
Indemnified Party settle any Third Person claim without the written consent of
the Indemnifying Party, which consent shall not be unreasonably withheld or
delayed. All settlements hereunder shall effect a complete release of the
Indemnified Party, unless the Indemnified Party otherwise agrees in writing.
10.4 Limitation on Indemnification. No party to this Agreement shall be
liable under this Section 10 for an amount which exceeds the Purchase Price.
11. GENERAL
11.1 Cooperation / Hart-Scott Act. Each of the Sellers and the Buyers shall
deliver or cause to be delivered to the other, such additional instruments as
the other may reasonably request for the purpose of carrying out this Agreement.
Buyers and the Sellers recognize that one or more filings under the Hart-Scott
Act may be required in connection with the transaction contemplated herein. If
Buyers and the Sellers determine that filings under the Hart-Scott Act are
required, then: (i) each party agrees to cooperate and use its best efforts to
comply with the Hart-Scott Act and (ii) the parties agree to cooperate and use
their best efforts to cause all filings required under the Hart-Scott Act to be
made as promptly as reasonably possible. If filings under the Hart-Scott Act are
required, each party shall pay its own costs and expenses thereof and one-half
of the filing fee.
11.2 Successors and Assigns. This Agreement and the rights of the parties
hereunder may not be assigned except by operation of law and, in the case of
each Buyer, to one or more of Buyers' affiliates identified on Exhibit B that
are accredited investors, and shall be binding upon and shall inure to the
benefit of the parties hereto, their permitted successors and assigns. Any
assignment of rights by a Buyer will be effected by delivery of written notice
to the Sellers, executed by the relevant Buyer and the assignee. Any assignee
shall agree in writing to become a party to this Agreement and the letter
agreement regarding assignment of rights under the Investors Rights Agreement
and to be bound by all the terms of such agreements. The assignee will
thereafter be deemed to be a "Buyer" for all purposes under this Agreement.
11.3 Limitation of Damages. Except in the case of fraud or claims asserted
under Section 10 hereof, no party shall have any liability for, and no party may
make any claim against or sue any other party for, any punitive, consequential
or incidental damages in connection with this Agreement or the transactions
contemplated hereby, whether based on breach of contract, tort or any other
theory of liability; provided, however, damages and losses recoverable pursuant
to Section 10 shall include all punitive, consequential or incidental damages
that must be paid by a party to a third party.
11.4 Counterparts. This Agreement may be executed simultaneously in two (2)
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument. A telecopied
facsimile of an executed counterpart of this Agreement shall be sufficient to
evidence the binding agreement of each party to the terms hereof. However, each
party agrees to return to the other parties an original, duly executed
counterpart of this Agreement promptly after delivery of a telecopied facsimile
thereof.
11.5 Brokers and Agents. Each party represents and warrants that it has
employed no broker or agent in connection with this transaction, other than
Sellers' engagement of Bear, Stearns & Co. Inc. ("Bear, Stearns"), and agrees to
indemnify the other parties hereto against all loss, cost, damages or expense
arising out of claims for fees or commission of brokers employed or alleged to
have been employed by such indemnifying party. Sellers shall be solely
responsible for payment of all fees owed to Bear, Stearns as a result of the
sale of the FirstWorld Securities.
11.6 Notices. All notices of communication required or permitted hereunder
shall be in writing and may be given by depositing the same in United States
mail, addressed to the party to be notified, postage prepaid and registered or
certified with return receipt requested, or by delivering the same in person to
an officer or agent of such party.
(a) If to the Sellers, addressed to:
Enron North America Corp.
1400 Smith, Suite 2132
Houston, Texas 77002
Attn.: Steve Horn
Phone: 713.853.4161
Fax: 713.646.8010
with copies to:
ECT Merchant Investments Corp.
1400 Smith, Suite 2006
Houston, Texas 77002
Attn: Steve Horn
Phone: 713.853.6161
Fax: 713.646.8010
with copies to:
Anne Koehler, Esq.
Enron North America Corp., Legal Department
1400 Smith, Suite 2006
Houston, Texas 77002
Phone: 713.853.3448
Fax: 713.646.3393
(b) If to the Buyers, addressed to:
TPG Partners III, L.P.
T3 Partners, L.P.
Colony Investors IV, L.P.
c/o Texas Pacific Group
Attn: Rick Eklebery
201 Main Street
Suite 2420
Fort Worth TX 76102
Phone: (817) 871 4080
Fax: (817) 871 4088
with copies to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, NY 10006
Attn.: Paul J. Shim, Esq.
Phone: (212) 225-2930
Fax: (212) 225-3999
or to such other address or counsel as any party hereto shall specify pursuant
to this Section 11.6 from time to time.
11.7 Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Texas, excluding any conflicts of law, rule or
principle that might refer same to the laws of another jurisdiction.
11.8 Exercise of Rights and Remedies. Except as otherwise provided herein,
no delay of or omission in the exercise of any right, power or remedy accruing
to any party as a result of any breach or default by any other party under this
Agreement shall impair any such right, power or remedy, nor shall it be
construed as a waiver of or acquiescence in any such breach or default, or of
any similar breach or default occurring later; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
occurring before or after that waiver.
11.9 Time. Time is of the essence with respect to this Agreement.
11.10 Reformation and Severability. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, it shall, to the extent possible, be
modified in such manner as to be valid, legal and enforceable but so as to most
nearly retain the intent of the parties, and if such modification is not
possible, such provision shall be severed from this Agreement, and in either
case the validity, legality and enforceability of the remaining provisions of
this Agreement shall not in any way be affected or impaired thereby. No
provision of this Agreement shall be interpreted or construed against any party
solely because that party or its legal representative drafted such provision.
11.11 Remedies Cumulative. No right, remedy or election given by any term
of this Agreement shall be deemed exclusive but each shall be cumulative with
all other rights, remedies and elections available at law or in equity. The
exercise of any remedy shall not preclude the simultaneous or later exercise of
any other remedy.
11.12 Captions. The headings of this Agreement are inserted for convenience
only, shall not constitute a part of this Agreement or be used to construe or
interpret any provision hereof.
11.13 Amendments. Any term of this Agreement may be amended only with the
written consent of the Buyers and each of the Sellers. Any amendment effected in
accordance with this Section 11.13 shall be binding upon each of the parties
hereto.
11.14 Dispute Resolution. Any dispute arising out of or in connection with
this Agreement, including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by binding arbitration
governed by the Federal Arbitration Act and conducted in accordance with the
American Arbitration Association Commercial Arbitration Rules which Rules are
deemed to be incorporated by reference into this clause. The number of
arbitrators shall be three, the Buyers having the right to appoint one
arbitrator and the Sellers having the right to appoint another arbitrator, which
arbitrators shall together then appoint a third neutral arbitrator within thirty
(30) days in accordance with the Rules. The third arbitrator shall be a person
who has five years or more experience in the relevant industry. The place of
arbitration shall be Houston, Texas, USA, where all hearings and meetings shall
be held. The parties hereby expressly waive any right of appeal to any court
having jurisdiction on any question of fact or law.
11.15 Entire Agreement. This Agreement (including the schedules attached
hereto) and the documents delivered pursuant hereto constitute the entire
agreement and understanding among the Sellers and the Buyers and supersede any
prior agreement and understanding relating to the subject matter of this
Agreement.
(Signature pages to follow)
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the Effective Date.
"SELLERS"
ENRON NORTH AMERICA CORP., a
Delaware corporation
By: /s/ Stephen R. Horn
---------------------------------
Name: Stephen R. Horn
----------------------------
Title: Vice President
---------------------------
ECT MERCHANT INVESTMENTS
CORP., a Delaware corporation
By: /s/ Stephen R. Horn
---------------------------------
Name: Stephen R. Horn
----------------------------
Title: Vice President
---------------------------
<PAGE>
"BUYERS"
TPG PARTNERS III, L.P.,
By: TPG GenPar III, L.P.,
its General Partner
By: TPG Advisors III, Inc.,
Its General Partner
By: /s/ Richard Ekleberry
Name: Richard Ekleberry
Title: Vice President
T3 PARTNERS, L.P.
By: T3 GenPar, L.P.,
its General Partner
By: T3 Advisors, Inc.,
Its General Partner
By: /s/ Richard Ekleberry
Name: Richard Ekleberry
Title: Vice President
COLONY INVESTORS IV, L.P.
By: Colony Capital IV, L.P.,
its General Partner
By: ColonyGP IV, Inc.,
Its General Partner
By: /s/ Richard Ekleberry
Name: Richard Ekleberry
Title: Vice President
<PAGE>
Exhibit A
CAPITALIZATION
[to be attached]
<PAGE>
Exhibit B
PERMITTED ASSIGNEES
Name Address
TPG Partners III, L.P. 201 Main Street
Suite 2420
Fort Worth, Texas 71602
TPG Parallel III, L.P. 201 Main Street
Suite 2420
Fort Worth, Texas 71602
TPG Dutch Parallel III, C.V. 201 Main Street
Suite 2420
Fort Worth, Texas 71602
TPG Investors III, L.P. 201 Main Street
Suite 2420
Fort Worth, Texas 71602
T3 Partners, L.P. 201 Main Street
Suite 2420
Fort Worth, Texas 71602
T3 Parallel, L.P. 201 Main Street
Suite 2420
Fort Worth, Texas 71602
T3 Dutch Parallel, C.V. 201 Main Street
Suite 2420
Fort Worth, Texas 71602
T3 Investors, L.P. 201 Main Street
Suite 2420
Fort Worth, Texas 71602
FOF Partners III, L.P. 201 Main Street
Suite 2420
Fort Worth, Texas 71602
<PAGE>
FOF Partners III-B, L.P. 201 Main Street
Suite 2420
Fort Worth, Texas 71602
Colony Investors IV, L.P. 201 Main Street
Suite 2420
Fort Worth, Texas 71602
c/o Richard A. Ekleberry
Exhibit 2
---------
WARRANT AMENDMENT
This Warrant Amendment (this "Agreement") is entered into among FirstWorld
Communications, Inc. (the "Company"), and TPG Partners III, L.P., a Delaware
limited partnership ("TPG III"), T3 Partners, L.P., a Delaware limited
partnership ("T3") and Colony Investors IV, L.P., a Delaware limited partnership
("Colony") as of the 10th day of February 2000. TPG, T3 and Colony are referred
to collectively in this Agreement as the "Purchasers." The Purchasers and the
Company are herein referred to as the "Parties."
WHEREAS, the Purchasers have entered into a Stock Purchase Agreement dated
February 10, 2000 with Enron North America Corp. and ECT Merchant Purchases
Corp. (the "Purchase Agreement") pursuant to which the Purchasers have agreed to
purchase (the "Purchase") certain shares of Series A Common Stock of the
Company, which will convert automatically upon the Purchase into shares of
Series B Common Stock of the Company, shares of outstanding shares of Series B
Common Stock (collectively, the "Shares"), and certain warrants to purchase
shares of Series B Common Stock of the Company (the "Warrants"). The Shares and
Warrants are referred to herein as the "Securities".
WHEREAS, pursuant to the Indenture dated April 13, 1998 (the "Indenture"),
the Company is subject to certain obligations triggered by a Change of Control,
as such term is defined in the Indenture.
WHEREAS, the Parties have agreed that, as a condition to the transfer of
the Securities as outlined in the Purchase Agreement, the Warrants shall be
amended to provide that the Purchasers shall not be entitled to exercise a
portion of the Warrants to the extent that the exercise thereof would give rise
to a Change of Control under the Indenture.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein and for other good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged, the Parties hereby covenant and
agree as follows:
1.1 Issuance of Separate Warrants. Upon the closing of the Purchase of the
Securities, the December Warrants (as defined in the Purchase Agreement) shall
be issued in two separate instruments, exercisable for 4,625,000 shares and
375,000 shares of Series B Common Stock, respectively. Such Warrants shall be
identical in all respects except as set forth in Section 1.2 below.
1.2 Amendment to Warrant to Purchase Series B Common Stock. Effective upon
the closing of the Purchase of the Securities, Section 1.1 of the December
Warrant exercisable for 375,000 shares of Series B common stock shall be amended
to insert following the last sentence of such Section 1.1:
"Notwithstanding anything to the contrary herein, this Warrant
shall not be exercisable to the extent (but only to the
extent) that such exercisability would cause the holder of
such Warrant, individually or taken together with all other
persons or entities acting as a group with such holder within
the meaning of Section 13(d)(3) and Section 14(d)(2) of the
Securities Exchange Act of 1934, as amended, to be or become
the Beneficial Owner (as such term is defined in the
Indenture) of more than 35% of the total Voting Stock (as such
term is defined in the Indenture) of the Company; provided
that, notwithstanding the foregoing, this Warrant shall become
fully exercisable upon the earlier to occur of (i) the 61st
day following the Company's initial public offering of shares
of the Company's Common Stock, (ii) February 15, 2001, (iii)
any Change of Control (as such term is defined in the
Indenture) and (iv) any amendment to or restatement of the
Company's Bylaws or Certificate of Incorporation without the
consent of Purchasers or their transferees holding a majority
of the Warrants (other than an amendment to increase the
number of shares of the Company's authorized Series B Common
Stock to a number not to exceed 150,000,000 shares in the
aggregate or any amendment required by applicable law)."
1.3 Assignment. Any person to whom a Purchaser assigns any of its rights
under the Purchase Agreement shall be deemed to consent and agree to this
amendment of the Warrants.
1.4 Other Terms; Entire Agreement. All other terms of the Warrants shall
remain in full force and effect. This Agreement sets forth all of the promises,
agreements, conditions, understandings, warranties and representations by or
among the Parties with respect to the actions contemplated hereby, and
supersedes all prior agreements, arrangements and understandings by or among the
Parties relating to such actions, whether written, oral or otherwise. There are
no promises, agreements, conditions, understandings, warranties or
representations, oral or written, express or implied, by or among the Parties
except as set forth herein, except as to the terms of the Warrant which continue
pursuant to the terms hereof.
<PAGE>
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
as of the date first above written.
TPG Partners III, L.P.
By: TPG GenPar III, L.P., its General Partner
By: TPG Advisors III, Inc., its General Partner
By: /s/ Richard A. Ekleberry
--------------------------------------------
Name: Richard A. Ekleberry
Title: Vice President
T3 Partners, L.P.
By: T3 GenPar, L.P., its General Partner
By: T3 Advisors, Inc., its General Partner
By: /s/ Richard A. Ekleberry
--------------------------------------------
Name: Richard A. Ekleberry
Title: Vice President
Colony Investors IV, L.P.
By: Colony Capital IV, L.P., its General Partner
By: Colony GP IV, Inc., its General Partner
By: /s/ Richard A. Ekleberry
--------------------------------------------
Name: Richard A. Ekleberry
Title: Vice President
FirstWorld Communications, Inc.
By: /s/ Jeffrey L. Dykes
-----------------------------------------
Name: Jeffrey L. Dykes
Title: Senior Vice President, General Counsel
Exhibit 3
---------
STOCK PURCHASE AGREEMENT
<PAGE>
TABLE OF CONTENTS
Page No.
--------
1. Purchase and Sale of Stock.............................1
1.1 Sale and Issuance of Stock....................1
1.2 The Closing...................................1
2. Representations and Warranties of the Company..........1
2.1 Organization and Good Standing................1
2.2 Authorization.................................1
2.3 Valid Issuance of Stock.......................2
2.4 Title to Property and Assets..................2
2.5 Compliance with Other Documents...............2
2.6 Registration Statement........................2
2.7 Capitalization................................2
2.8 Litigation....................................2
2.9 Intellectual Property.........................2
2.10 Financial Statements..........................3
2.11 Changes.......................................3
2.12 Taxes.........................................3
3. Representations and Warranties of the Investor.........3
3.1 Authorization.................................3
3.2 Investigation.................................3
3.3 Institutional Accredited Investor.............3
3.4 Purchase Entirely for Own Account.............3
3.5 Restricted Securities.........................3
4. Conditions to the Investor's Obligation at Closing.....4
4.1 Representations and Warranties................4
4.2 Securities Laws...............................4
4.3 Authorizations................................4
4.4 Initial Public Offering of Common Stock.......4
5. Conditions to the Company's Obligations at Closing.....4
5.1 Representations and Warranties................4
5.2 Securities Laws...............................4
5.3 Authorizations................................4
5.4 Initial Public Offering of Common Stock.......4
5.5 Payment of Purchase Price.....................4
6. Covenants of the Company and the Investor..............5
6.1 Agreement Not Transfer........................5
6.2 Market Stand-Off..............................5
6.3 Notice of Intention to Transfer...............5
6.4 Registration of Stock.........................5
6.5 Publicity.....................................6
7. Miscellaneous..........................................6
7.1 Governing Law.................................6
7.2 Survival; Additional Securities...............6
7.3 Successors and Assigns........................6
7.4 Entire Agreement..............................6
7.5 Notices.......................................6
7.6 Amendments and Waivers........................6
7.7 Legal Fees....................................7
7.8 Expenses......................................7
7.9 Titles and Subtitles..........................7
7.10 Counterparts..................................7
7.11 Severability..................................7
7.12 Confidentiality...............................7
7.13 Termination...................................7
<PAGE>
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is entered into as of the 11th day of
February, 2000, by and between FirstWorld Communications, Inc., a Delaware
corporation (the "Company") and TPG FirstWorld I LLC, a Delaware limited
liability company (the "Investor").
WHEREAS, the Investor has indicated a desire to purchase the number of
shares of the Company's Series B Common Stock ("Common Stock") obtained by
dividing $50,000,000 by 93% of the per share price paid by the public for the
Company's Common Stock in the Company's initial public offering (the "IPO").
WHEREAS, the Company has indicated a desire to sell the number of shares of
the Company's Common Stock obtained by dividing $50,000,000 by 93% of the per
share price paid by the public for the Company's Common Stock in the Company's
IPO to the Investor on the terms set forth herein.
WHEREAS, the Company and the Investor have agreed that this Agreement shall
constitute the entire understanding and agreement between the parties with
regard to the subject matter hereof.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1 Sale and Issuance of Stock. Subject to the terms and conditions of this
Agreement, the Company agrees to sell to the Investor and the Investor agrees to
purchase from the Company the number of shares of the Company's Common Stock
obtained by dividing $50,000,000 by 93% of the per share price paid by the
public for the Company's Common Stock in the Company's IPO (the "Stock"), having
the rights, preferences, privileges and restrictions set forth in the
Certificate of Incorporation of the Company (the "Certificate") on file with the
Delaware Secretary of State as of the Closing (as defined below).
1.2 The Closing. The purchase and sale of the Stock shall be held at the
Company's offices immediately following the closing of the Company's IPO (the
"Closing"). At the Closing, the Company will deliver the Stock to the Investor
against payment of the purchase price therefor by check payable to the order of
the Company or by wire transfer. The per share purchase price for the Stock
shall be 93% of the per share price paid by the public for the Company's Common
Stock in the IPO.
2. Representations and Warranties of the Company. Except as set forth on the
schedule of exceptions delivered herewith, the Company hereby represents and
warrants to the Investor that:
2.1 Organization and Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to carry on its
business as now conducted. The Company is duly qualified to transact business
and is in good standing in each jurisdiction in which the failure to so qualify
would have a material adverse effect on its business or properties.
2.2 Authorization. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement, the performance of all obligations of the
Company hereunder, and the authorization, issuance, sale and delivery of the
Stock has been taken or will be taken prior to the Closing, and this Agreement
constitutes a valid and legally binding obligation of the Company, enforceable
in accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally and (ii) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
2.3 Valid Issuance of Stock. The Stock, when issued, sold and delivered in
accordance with the terms hereof for the consideration expressed herein, will be
duly and validly issued, fully paid and nonassessable and will be free of
restrictions on transfer other than restrictions on transfer under this
Agreement and under applicable state and federal securities laws. Subject in
part to the truth and accuracy of the Investor's representations set forth in
Section 3 of this Agreement, the offer, sale and issuance of the Stock as
contemplated by this Agreement are exempt from the registration requirements of
any applicable state and federal securities laws.
2.4 Title to Property and Assets. The Company owns its property and assets
free and clear of all mortgages, liens, loans and encumbrances, except such
encumbrances and liens that arise in the ordinary course of business and do not
materially impair the Company's ownership or use of such property or assets.
With respect to the property and assets it leases, the Company is in compliance
with such leases, except to the extent such non-compliance would not materially
impair the Company's business or prospects and, to the best of its knowledge,
holds a valid leasehold interest free of any liens, claims or encumbrances. The
Company is subject to the debt covenants and other terms and conditions set
forth in the Indenture dated April 13, 1998 between the Company and the Bank of
New York as Trustee (the "Indenture").
2.5 Compliance with Other Documents. The execution and delivery of this
Agreement, consummation of the transactions contemplated hereby, and compliance
with the terms and provisions hereof will not conflict with or result in a
breach of the terms and conditions of, or constitute a default under the
Restated Certificate or Bylaws of the Company or of any contract or agreement to
which the Company is now a party, except where such conflict, breach or default
of any such contract or agreement, either individually or in the aggregate,
would not have a material adverse effect on the Company's business, financial
condition or results of operations.
2.6 Registration Statement. The Company's registration statement on Form
S-1, as amended, (the "Registration Statement") shall not, at the time the
Registration Statement (including any amendments or supplements thereto) is
declared effective by the Securities and Exchange Commission ("SEC"), contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
2.7 Capitalization. The Company's capitalization information contained in
the Registration Statement is complete and accurate as of the dates specified
therein.
2.8 Litigation. Except as disclosed in the Company's Registration
Statement, to the best of the Company's knowledge, there are no actions,
proceedings or investigations pending against the Company, that, either in any
case or in the aggregate, would result in any material adverse change in the
business, financial condition, or results of operations of the Company.
2.9 Intellectual Property. Except as disclosed in the Registration
Statement, the Company owns, possesses or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions, know-how,
patents, copyrights, confidential information and other intellectual property
(collectively, "Intellectual Property Rights") necessary to conduct the business
now operated by it, or presently employed by it, and has not received any notice
of infringement of or conflict with asserted rights of others with respect to
any intellectual property rights that, if determined adversely to the Company,
would individually or in the aggregate have a material adverse effect on the
condition (financial or other), business, properties or results of operations.
2.10 Financial Statements. The financial statements included in the
Registration Statement present fairly the financial position of the Company as
of the dates shown and its results of operations and cash flows for the periods
shown, and, except as otherwise disclosed in the Registration Statement, such
financial statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a consistent
basis.
2.11 Changes. Except as disclosed in the Registration Statement, since the
date of the latest audited financial statements included in the Registration
Statement there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company taken as a whole.
2.12 Taxes. The Company has filed on a timely basis all tax returns and
reports (including information returns and reports) as required by law. These
returns and reports are true and correct in all material respects except to the
extent that a reserve has been reflected on the Company's financial statements
in accordance with generally accepted accounting principles. The Company has
paid all taxes and other assessments due, except those contested by it in good
faith and except to the extent that a reserve has been reflected on the
Company's financial statements in accordance with generally accepted accounting
principles. The provision for taxes of the Company as shown in the Company's
financial statements is adequate for taxes due or accrued as of the date
thereof.
3. Representations and Warranties of the Investor. The Investor hereby
represents and warrants that:
3.1 Authorization. This Agreement constitutes the valid and legally binding
obligation of the Investor, enforceable in accordance with its terms, subject to
laws of general application relating to bankruptcy, insolvency and the relief of
debtors and by general principles of equity.
3.2 Investigation. The Investor acknowledges that it has had an opportunity
to discuss the business, affairs and current prospects of the Company with the
Company's chief executive officer. The Investor further acknowledges having had
access to information about the Company that it has requested or considers
necessary for purposes of purchasing the Stock. The foregoing, however, does not
limit or modify the representations and warranties of the Company in Section 2
of this Agreement or the right of the Investors to rely thereon.
3.2 Institutional Accredited Investor. The Investor is a large
institutional accredited investor. "Accredited Investor" has the meaning
ascribed to it in Regulation D as promulgated under the Securities Act of 1933,
as amended.
3.4 Purchase Entirely for Own Account. This Agreement is made with the
Investor in reliance upon the Investor's representation to the Company, which by
the Investor's execution of this Agreement the Investor hereby confirms, that
the Stock will be acquired for investment for the Investor's own account, not as
a nominee or agent, and not with a view to the resale or distribution of any
part thereof, and that the Investor has no present intention of selling,
granting any participation in, or otherwise distributing the same.
3.5 Restricted Securities. Investor understands that the Stock it is
purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act, only in certain limited circumstances. In this connection, Investor
represents that it is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
4. Conditions to the Investor's Obligation at Closing. The obligation of the
Investor to purchase the Stock at the Closing is subject to the fulfillment to
the Investor's satisfaction on or prior to the Closing of the following
conditions:
4.1 Representations and Warranties. The representations and warranties made
by the Company in Section 2 hereof shall be true and correct when made, and
shall be true and correct as of the Closing with the same force and effect as if
they had been made on and as of such date, subject to changes contemplated by
this Agreement. The Chief Executive Officer of the Company shall deliver at the
Closing a certificate stating that the condition specified in the preceding
sentence has been fulfilled.
4.2 Securities Laws. The offer and sale of the Stock to the Investor
pursuant to this Agreement shall be exempt from the registration requirements of
the Securities Act of 1933, as amended (the "Act") and qualification
requirements of all applicable state securities laws.
4.3 Authorizations. All authorizations, approvals or permits, if any, of
any governmental authority or regulatory body that are required in connection
with the lawful issuance and sale of the Stock pursuant to this Agreement shall
have been duly obtained and shall be effective on and as of the Closing.
4.4 Initial Public Offering of Common Stock. The closing of the initial
public offering of the Company's Series B Common Stock shall have occurred.
4.5 Condition to Close. The purchase of the Stock shall be subject to a
condition to closing as to any portion of the shares of Stock proposed to be
sold pursuant to this Agreement (and only that portion), that the purchase by
the Investor, individually, or taken together with all other all persons or
entities acting as a group within the meaning of Section 13(d)(3) and Section
14(d)(2) of the Securities Exchange Act of 1934, as amended, (collectively, the
"Group") not cause the Group to become the Beneficial Owner (as such term is
defined in the Company's Indenture dated April 13, 1998) of more than 35% of
Voting Stock (as such term is defined in the Indenture) of the Company.
5. Conditions to the Company's Obligations at Closing. The obligation of the
Company to sell the Stock at the Closing is subject to the fulfillment to the
Company's satisfaction on or prior to the Closing of the following conditions:
5.1 Representations and Warranties. The representations and warranties of
the Investor contained in Section 3 hereof shall be true as of the Closing with
the same force and effect as if they had been made on and as of such date,
subject to changes contemplated by this Agreement. An authorized officer of the
Investor shall deliver at the Closing a certificate stating that the condition
specified in the preceding sentence has been fulfilled.
5.2 Securities Laws. The offer and sale of the Stock to the Investor
pursuant to this Agreement shall be exempt from the registration requirements of
the Act qualification requirements of all applicable state securities laws.
5.3 Authorizations. All authorizations, approvals or permits, if any, of
any governmental authority or regulatory body that are required in connection
with the lawful issuance and sale of the Stock pursuant to this Agreement shall
have been duly obtained and shall be effective on and as of the Closing,
including without limitation filings and any necessary approvals under the
Hart-Scott-Rodino Anti-Trust Improvement Act.
5.4 Initial Public Offering of Series B Common Stock. The closing of the
initial public offering of the Company's Series B Common Stock shall have
occurred.
5.5 Payment of Purchase Price. The Investor shall have delivered to the
Company the purchase price for the Stock as set forth in Section 1.2 hereof.
5.6 Condition to Close. The purchase of the Stock shall be subject to a
condition to closing as to any portion of the shares of Stock proposed to be
sold pursuant to this Agreement (and only that portion), that the purchase by
the Investor, individually, or taken together with all other all persons or
entities acting as a group within the meaning of Section 13(d)(3) and Section
14(d)(2) of the Securities Exchange Act of 1934, as amended, (collectively, the
"Group") not cause the Group to become the Beneficial Owner (as such term is
defined in the Company's Indenture dated April 13, 1998) of more than 35% of
Voting Stock (as such term is defined in the Indenture) of the Company.
6. Covenants of the Company and the Investor.
6.1 Agreement Not to Transfer.
(a) Prior to one hundred eighty (180) days after the Closing, the Investor
shall not, directly or indirectly, Transfer or offer to Transfer any shares of
the Stock other than to affiliates who agree to be bound by the terms of this
Agreement, unless the Company consents to such Transfer and the transferee
agrees to be bound by this Agreement.
(b) In order to enforce the transfer restrictions set forth in this Section
6, the Company may impose stop transfer instructions with respect to the Stock
until the end of the restricted period.
(c) As used in this Agreement, the term "Transfer" shall mean any sale,
transfer, assignment, hypothecation, encumbrance or other disposition, whether
voluntary or involuntary, of shares of the Stock. In the case of a
hypothecation, the Transfer shall be deemed to occur both at the time of the
initial pledge and at any pledgee's sale or a sale by any secured creditor or a
retention by thc secured creditor of the pledged shares of the Stock in complete
or partial satisfaction of the indebtedness for which the shares of the Stock
are security.
6.2 Market Stand-Off. In addition to the transfer restrictions set forth in
Section 6.1 above (which shall in no way be limited by the following), in
connection with any underwritten public offering by the Company of its equity
securities pursuant to an effective registration statement filed under the Act,
the Investor shall not Transfer or offer to Transfer any shares of the Stock
without the prior written consent of the Company and its underwriters. Such
restriction (the "Market Stand-Off') shall be in effect for such period of time
from and after the effective date of the final prospectus for the offering as
may be requested by the Company or such underwriters; provided, however, that
(i) such Market Stand-Off shall not exceed one hundred eighty (180) days, and
(ii) the Investor shall be subject to the Market Stand-Off only if the officers
and directors of the Company are also subject to similar restrictions. In order
to enforce the Market Stand-Off, the Company may impose stop-transfer
instructions with respect to the Stock until the end of the applicable stand-off
period.
6.3 Notice of Intention to Transfer. In the event the Investor plans to
Transfer shares of the Stock in one or more transactions, the Investor shall
inform the Company of such intention to Transfer such shares fifteen (15) days
prior to such Transfer. Investor shall agree that any transfer, sale or other
disposition of the Company's Common Stock shall be through an orderly
disposition, including, at the request of the Company, through a broker-dealer
recommended by the Company.
6.4 Registration of Stock. The Company agrees that, with regard to the
Stock, the Investor shall become a party to the Amended and Restated Investors
Rights Agreement attached as Exhibit A (the "Rights Agreement") for the sole
purpose of providing the Investor with the demand, piggyback and Form S-3
registration rights described in Sections 2.2, 2.3 and 2.4 of Rights Agreement.
Solely in connection with such demand, piggyback and S-3 registration rights set
forth in Sections 2.2, 2.3 and 2.4, the Investor shall be deemed to be a "Demand
Holder" as defined in Section 1.1 of the Rights Agreement and the shares of
Series B common stock held by the Investor shall be deemed to be "Demand Shares"
and "Registrable Securities" as such terms are defined in the Rights Agreement.
The Investor understands and agrees that (i) the Stock will be
characterized as "restricted securities" under the federal securities laws
inasmuch as it is being acquired from the Company in a transaction not involving
a public offering and that under such laws and applicable regulations such
securities may be resold without registration under the Act only in certain
limited circumstances, and (ii) each certificate representing the Stock and any
other securities issued in respect of the Stock upon any stock split, stock
dividend, recapitalization, merger or similar event (unless no longer required
in the opinion of counsel for the Company) shall be stamped or otherwise
imprinted with appropriate legends mandated by federal and state securities
laws.
6.5 Publicity. Except as required by law, no press release, public
statement, advertisement or similar publicity from any party hereunder with
respect to the participation of the Investor in the transactions contemplated
hereby (or any other matter relating to the Company and the Investor or its
affiliates) shall be issued or made without the prior consent of Investor.
Notwithstanding the foregoing, the Company may disclose Investor's investment in
the Company and the terms thereof and such other information previously approved
by Investor for inclusion in the Registration Statement.
7. Miscellaneous.
7.1 Governing Law. This Agreement shall be governed in all respects by the
laws of the State of Delaware as applied to agreements among Delaware residents
entered into and to be performed entirely within Delaware, without regard to the
conflict of law provisions thereof.
7.2 Survival; Additional Securities. The representations and warranties set
forth in Sections 2 and 3 shall survive until the Closing. The covenants and
agreements set forth in Section 6 shall survive in accordance with their terms.
Any new, substituted or additional securities which are by reason of any stock
split, stock dividend, recapitalization or reorganization distributed with
respect to the Stock ("Stock Distributions") shall be immediately subject to the
covenants and agreements set forth in Section 6 to the same extent the Stock is
at such time covered by such provisions.
7.3 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
respective successors and assigns of the parties hereto. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. Notwithstanding anything to the
contrary contained herein, the covenants set forth in Section 6 shall not be
binding upon any entity (other than an affiliate of the Investor) which acquires
any shares of the Stock or a Stock Distribution in a transaction permitted
hereunder.
7.4 Entire Agreement. This Agreement constitutes the entire understanding
and agreement between the parties with regard to the subject matter hereof.
7.5 Notices. Except as otherwise provided, all notices and other
communications required or permitted hereunder shall be in writing, shall be
effective when given, and shall in any event be deemed to be given upon receipt
or, if earlier, (i) five (5) days after deposit with the U.S. postal service or
other applicable postal service, if delivered by first class mail, postage
prepaid, (ii) upon delivery, if delivered by hand, (iii) one (1) business day
after the day of deposit with Federal Express or similar overnight courier,
freight prepaid, if delivered by overnight courier or (iv) one (1) business day
after the day of facsimile transmission, if delivered by facsimile transmission
with copy by first class mail, postage prepaid, and shall be addressed, (a) if
to the Investor, at the Investor's address set forth below its signature, or at
such other address as the Investor shall have furnished to the Company in
writing, or (b) if to the Company, at its address as set forth below its
signature, or at such other address as the Company shall have furnished to the
Investor in writing.
7.6 Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of the Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with
the written consent of the Company and the Investor.
7.7 Legal Fees. In the event of any action at law, suit in equity or
arbitration proceeding in relation to this Agreement or the Stock or any Stock
Distribution, the prevailing party shall be paid by the other party a reasonable
sum for the attorneys' fees and expenses incurred by such prevailing party.
7.8 Expenses. Irrespective of whether the Closing is effected, the Company
and the Investor shall each pay their own costs and expenses incurred with
respect to the negotiation, execution, delivery and performance of this
Agreement.
7.9 Titles and Subtitles. The titles of the paragraphs and subparagraphs of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
7.10 Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
7.11 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
7.12 Confidentiality. The parties hereto agree that, except with the prior
written permission of the other party, it shall at all times keep confidential
and not divulge, furnish, or make accessible to anyone any confidential
information, knowledge, or data concerning or relating to the business or
financial affairs of such other party to which said party has been or shall
become privy by reason of this Agreement, discussions or negotiations relating
to this Agreement or the performance of its obligations hereunder.
7.13 Termination. This Stock Purchase Agreement shall terminate and be of
no further force or effect on the date on which the Company's IPO is
consummated, if Investor has not received the necessary approval required to
effect the investment contemplated by this agreement under the Hart-Scott-Rodino
Anti-Trust Improvement Act or its successor. Notwithstanding the foregoing, if
the Closing has not occurred as of May 12, 2000, this agreement shall be
terminable at the option of the Investor.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Agreement as of the date first above
written.
FIRSTWORLD COMMUNICATIONS, INC.
By: /s/ Jeffrey L. Dykes
---------------------------------------------
Name: Jeffrey L. Dykes
---------------------------------------------
Title: Senior Vice President, General Counsel
---------------------------------------------
TPG FirstWorld I LLC
By: /s/ Richard A. Ekleberry
---------------------------------------------
Name: Richard A. Ekleberry
---------------------------------------------
Title: Vice President and Secretary
---------------------------------------------
<PAGE>
EXHIBIT A
[FirstWorld Communications, Inc. Amended and Restated Investor Rights Agreement
Exhibit 5
---------
Enron North America Corp.
1400 Smith Street
Houston, Texas 77002
February 10, 2000
FirstWorld Communications, Inc.
Attn: Mr. Jeffrey Dykes
8390 E. Crescent Parkway, Suite 300
Greenwood Village, CO 80111
Colorado Spectra 1, L.L.C.
Colorado Spectra 2, L.L.C.
Colorado Spectra 3, L.L.C.
Colorado Spectra 4, L.L.C.
Attn: Donald Sturm
3033 East First Avenue, Suite 200
Denver, Colorado 80206
TPG Partners III L.P.
T3 Partners L.P.
Colony Investors IV L.P.
Attn: Rick Ekelbery
c/o Texas Pacific Group
201 Main Street
Suite 2420
Fort Worth TX 76102
Re: Assignment of Rights, Assumption of Obligations and Termination of
Rights of Enron North America Corp. (formerly Enron Capital & Trade Resources
Corp.) (together with all its affiliates, "ENA"), Nina I, L.L.C., ECT Merchant
Investments Corp. and Sundance Assets, L.P. (together with ENA, the "Enron
Entities") with respect to the Amended and Restated Investor Rights Agreement
(the "Agreement"), dated as of April 13, 1998, as amended, among the Enron
Entities, FirstWorld Communications, Inc. (formerly SpectraNet International)
("FirstWorld"), Colorado Spectra 1, L.L.C., Colorado Spectra 2, L.L.C., Colorado
Spectra 3, L.L.C., Colorado Spectra 4, LLC (collectively, the "Sturm Entities"),
and the other individuals and entities signatory thereto
Gentlemen:
This letter will evidence the agreement of the parties, in accordance with
Section 5.5 of the Agreement, to (1) the assignment of certain rights by the
Enron Entities and the substitution of TPG Partners III L.P., T3 Partners L.P.
and Colony Investors IV, L.P., each a Delaware limited partnership,
(collectively, the "Purchasers") for the Enron Entities with respect to certain
rights and obligations set forth in the Agreement; (2) the adoption of the
Agreement by the Purchasers; and (3) the termination of certain rights of the
Enron Entities under the Agreement.
1. Assignment. Effective upon the closing of the sale of FirstWorld
securities held by ENA to the Purchasers pursuant to the Stock Purchase
Agreement dated as of February 10, 2000 by and between ENA and ECT Merchant
Investment Corp. and the Purchasers (the "Closing Date"), the Enron Entities
hereby assign to the Purchasers the following rights under the Investor Rights
Agreement: (a) their rights to register "Registrable Securities," as defined in
the Agreement, pursuant to Section 2 of the Agreement with respect to the
FirstWorld securities transferred to each of the Purchasers by the Enron
Entities upon the Closing; (the Enron Entities will retain their registration
rights with respect to the FirstWorld securities retained by the Enron Entities
after the Closing (the "Retained Securities"), (b) their rights of first refusal
under Section 4 of the Agreement, and (c) rights to FirstWorld information under
Section 3 of the Agreement; (the Enron Entities will retain such rights with
respect to the Retained Securities). FirstWorld acknowledges and agrees that the
requirements of clause (A) of the proviso to Section 2.10 have been satisfied.
The Sturm Entities and FirstWorld hereby acknowledge and agree that all
requirements of the Agreement for the assignment of the rights described herein
have been met and that this letter agreement is effective to assign such rights.
The parties hereto further consent to the amendment of the Agreement
pursuant to Section 5.5(a), effective upon the Closing, by replacing each
reference to "Enron" with a reference to "TPG III Partners, L.P." in Sections
2.11, 2.12, 5.5(a) and 5.5(b).
2. Adoption. Pursuant to Section 2.1(a)(ii)(A) and clause (B) of the
proviso to Section 2.10 of the Agreement, each of the Purchasers hereby agrees
to be bound by the terms of, and subject to all of the restrictions set forth
in, the Agreement. FirstWorld and the Sturm Entities hereby acknowledge
satisfaction of the requirements of Section 2.1(a)(ii)(B) with respect to ENA's
sale to the Purchasers.
3. Termination of Rights. All remaining rights and obligations of the Enron
Entities under the Agreement, including the registration rights under Section 2
with respect to the Retained Securities, will terminate upon the later to occur
of: (i) the Closing and (ii) the consummation of an offering of the FirstWorld
Series B Common Stock registered pursuant to the Securities Act of 1933, as
amended, and the listing of the Series B Common Stock for trading on the New
York Stock Exchange or quotation on the Nasdaq National Market. Notwithstanding
the foregoing, the rights of the Enron Entities under Section 4 of the Agreement
shall terminate upon the Closing.
4. Assignees. If any of the Purchasers assigns any of its rights to
purchase FirstWorld securities from any of the Enron Entities, the Purchaser
shall require the assignee to become a party to the Agreement and this letter
agreement by agreeing in writing to be bound by all the terms of both
agreements. Notwithstanding anything contained in the Agreement to the contrary,
FirstWorld and the Sturm Entities agree that so long as the assignee is an
affiliate of one of the Purchasers no notice or information disclosure is
required to permit the assignee to become a party to the agreements.
5. Consent. The Purchasers and the Enron Entities acknowledge and agree
that the Enron Entities have previously consented under Section 5.5 of the
Agreement to an amendment to the Agreement which provides Lucent Technologies,
SAIC Venture Capital Corp. and Microsoft Corporation with S-3, demand and
piggyback registration rights. In addition, the Purchasers and the Enron
Entities hereby consent to an amendment to the Agreement to provide TPG
FirstWorld I, LLC with identical demand, S-3 and piggyback rights with respect
to the shares of Series B common stock of FirstWorld purchased by TPG FirstWorld
I, LLC in a private placement which will close concurrently with FirstWorld's
IPO.
6. Notice for the Purchasers. Pursuant to Section 2.10 of the Agreement,
the address for each of the Purchasers is as provided on the first page hereto.
(Signature pages to follow)
<PAGE>
Please evidence your agreement with the foregoing by signing this letter
and the enclosed duplicate counterparts in the space provided below and
returning one copy to ENA, attention: Anne Koehler at the address provided
above.
Very truly yours,
ENRON NORTH AMERICA CORP.
By: /s/ Stephen R. Horn
-------------------
Name: Stephen R. Horn
Title: Vice President
SUNDANCE PARTNERS, L.P.
By: /s/ Stephen R. Horn
-------------------
Name: Stephen R. Horn
Title: Vice President
NINA I, LLC
By: /s/ Stephen R. Horn
-------------------
Name: Stephen R. Horn
Title: Vice President
ECT MERCHANT INVESTMENTS CORP.
By: /s/ Stephen R. Horn
-------------------
Name: Stephen R. Horn
Title: Vice President
<PAGE>
AGREED TO AND ACCEPTED
this 10th day of February, 2000.
FIRSTWORLD COMMUNICATIONS, INC. COLORADO SPECTRA 4, L.L.C.
By: /s/ Jeffrey L. Dykes By: /s/ James O. Spitzenburger
-------------------- --------------------------
Name: Jeffrey L. Dykes Name: James O. Spitzenburger
Title: V.P., General Counsel Title: Vice President
and Secretary
COLORADO SPECTRA 1, L.L.C. TPG PARTNERS III L.P.
By: /s/ James O. Spitzenberger By: /s/ Richard Ekleberry
-------------------------- ---------------------
Name: James O. Spitzenberger Name: Richard Ekleberry
Title: Vice President Title: V.P.
COLORADO SPECTRA 2, L.L.C. T3 PARTNERS L.P.
By: /s/ James O. Spitzenberger By: /s/ Richard Ekleberry
-------------------------- ---------------------
Name: James O. Spitzenberger Name: Richard Ekleberry
Title: Vice President Title: V.P.
COLORADO SPECTRA 3, L.L.C. COLONY INVESTORS IV L.P.
By: /s/ James O. Spitzenberger By: /s/ Richard Ekleberry
-------------------------- ---------------------
Name: James O. Spitzenberger Name: Richard Ekleberry
Title: Vice President Title: V.P.
Exhibit 6
---------
JOINT FILING AGREEMENT
JOINT FILING AGREEMENT (this "Agreement"), dated as of February 22, 2000
among TPG Advisors III, Inc., a Delaware corporation ("TPG Advisors III"), T3
Advisors, Inc., a Delaware corporation ("T3 Advisors") and ColonyGP IV, Inc.
("ColonyGP IV"), a Delaware corporation.
W I T N E S S E T H
WHEREAS, as of the date hereof, each of TPG Advisors III, T3 Advisors and
ColonyGP IV is filing a statement on Schedule 13D under the Securities Exchange
Act of 1934 (the "Exchange Act") with respect to the Series B Common Stock of
FirstWorld Communications, Inc., a corporation organized and existing under the
laws of Delaware (the "Schedule 13D");
WHEREAS, each of TPG Advisors III, T3 Advisors and ColonyGP IV is
individually eligible to file the Schedule 13D;
WHEREAS, each of TPG Advisors III, T3 Advisors and ColonyGP IV wishes to
file the Schedule 13D and any amendments thereto jointly and on behalf of each
of TPG Advisors III, T3 Advisors and ColonyGP IV, pursuant to Rule 13d-1(k)(1)
under the Exchange Act;
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the parties hereto agree as follows:
1. TPG Advisors III, T3 Advisors and ColonyGP IV hereby agree that the
Schedule 13D is, and any amendments thereto will be, filed on behalf of each of
TPG Advisors III, T3 Advisors and ColonyGP IV pursuant to Rule 13d-1(k)(1)(iii)
under the Exchange Act.
2. TPG Advisors III hereby acknowledges that, pursuant to Rule
13d-1(k)(1)(i) under the Exchange Act, TPG Advisors III is responsible for the
timely filing of the Schedule 13D and any amendments thereto, and for the
completeness and accuracy of the information concerning TPG Advisors III
contained therein, and is not responsible for the completeness and accuracy of
the information concerning T3 Advisors or ColonyGP IV contained therein, unless
TPG Advisors III knows or has reason to know that such information is
inaccurate.
3. T3 Advisors hereby acknowledges that, pursuant to Rule 13d-1(k)(1)(i)
under the Exchange Act, T3 Advisors is responsible for the timely filing of the
Schedule 13D and any amendments thereto, and for the completeness and accuracy
of the information concerning T3 Advisors contained therein, and is not
responsible for the completeness and accuracy of the information concerning TPG
Advisors III or ColonyGP IV contained therein, unless T3 Advisors knows or has
reason to know that such information is inaccurate.
4. ColonyGP IV hereby acknowledges that, pursuant to Rule 13d-1(k)(1)(i)
under the Exchange Act, ColonyGP IV is responsible for the timely filing of the
Schedule 13D and any amendments thereto, and for the completeness and accuracy
of the information concerning ColonyGP IV contained therein, and is not
responsible for the completeness and accuracy of the information concerning TPG
Advisors III or T3 Advisors contained therein, unless ColonyGP IV knows or has
reason to know that such information is inaccurate.
5. Each of TPG Advisors III, T3 Advisors and ColonyGP IV hereby agree that
this Agreement shall be filed as an exhibit to the Schedule 13D, pursuant to
Rule 13d-1(k)(1)(iii) under the Exchange Act.
[Remainder of page intentionally blank]
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers hereunto duly authorized as of the day and year
first above written.
TPG ADVISORS III, INC.
By: /s/ Richard A. Ekleberry
------------------------
Name: Richard A. Ekleberry
Title: Vice President
T3 ADVISORS, INC.
By: /s/ Richard A. Ekleberry
------------------------
Name: Richard A. Ekleberry
Title: Vice President
COLONYGP IV, INC.
By: /s/ Richard A. Ekleberry
------------------------
Name: Richard A. Ekleberry
Title: Vice President
